Foran & Anor v Wight

This matter concerned an application for special leave to appeal to the High Court of Australia, brought by the purchasers, Gregory Robert Foran and Raymond George Wight, against the respondents. The dispute arose from a contract for the sale of land, where the purchasers sought to recover their deposit following an alleged anticipatory breach and repudiation by the vendors.

The primary legal issues before the Court were whether an innocent party could rescind a contract without further action when an anticipatory breach continued through and after the due date for performance, thereby becoming an actual repudiation. Further, the Court considered the onus of proof in such circumstances: whether the rescinding party must prove their own innocence, or if the repudiating party must prove the contrary. The applicants also sought to challenge the application of principles concerning the ability to recover damages, particularly in light of the decision in *Sunbird Plaza Pty Ltd v Maloney*.

The applicants argued that the Court of Appeal's decision was inconsistent with established principles, particularly regarding anticipatory breach and actual repudiation. They contended that where an anticipatory breach persists beyond the performance date, it constitutes an actual repudiation, allowing the innocent party to rescind without further proof of their own readiness and willingness to complete. The applicants submitted that the onus rested on the repudiating party to demonstrate the innocent party's lack of readiness and willingness, a burden they argued the vendors had failed to discharge. The applicants also highlighted that they were seeking rescission and restitution of their deposit, not damages, and therefore the usual requirement to prove loss was not applicable.